Christian Burset: Oldham’s Reports: New Light on Judges and Their Cases

Christian Burset

Christian Burset is Associate Professor of Law, University of Notre Dame Law School.

It’s an honor to help celebrate Professor Oldham’s long and fruitful career. My comments will focus, naturally, on the importance of his research. But I should also note his well-deserved reputation for generosity as a scholar. I first experienced his kindness when I was a graduate student, emailing him out of the blue to ask for help with eighteenth-century arbitration. (The subject line of my message literally started with “Help.”) And help he did. Within a few days, he had read a draft of my dissertation chapter, sent some suggested reading, and volunteered himself for a long phone call about my work.

I mention this aspect of his character not only to acknowledge my personal debt to him, but also because it frames an important aspect of his scholarship: its openhandedness.

I was asked to comment on Professor Oldham’s publications about judges and law reporting. They span three decades, and I have no hope of doing them justice in the brief space I have here. But my task is made easier by a happy bibliographic symmetry. The first publication for this part of the program (I am going in chronological order) is “Eighteenth-Century Judges’ Notes: How They Explain, Correct and Enhance the Reports.” The last (going by online publication date) is “The Law of Negligence as Reported in The Times, 1785–1820.” As their titles suggest, both pieces are principally about sources. To be sure, they also make important substantive additions to our knowledge of legal history. But Professor Oldham framed them in a way that suggests that their first contribution is methodological. Their most important job, in other words, was to encourage other historians do their jobs better—to invite them, as he said in another article, to join him in mining a rich but neglected vein of material. Indeed, Professor Oldham wasn’t always content with a mere invitation. If a lode proved especially rich but too challenging for others to access, he would bring it to us—most notably in the Mansfield Manuscripts, which included not only important essays on English legal history, but also carefully edited transcriptions of Lord Mansfield’s case notes. (More on that in a minute.)

It’s fitting that Professor Oldham selected as the title of his retirement conference “The Love and Labor of Archival Research.” I suspect that he meant “love” to refer to his own deep affection for the archives. But in interpreting that title, we might also use “love” in the sense of charity— as willing the good of another person. (That Thomistic definition would have been familiar to St. Thomas More, the namesake of Professor Oldham’s chair at Georgetown.) For Professor Oldham’s monumental body of archival work really has been an act of charity toward his colleagues and successors in legal history.

But “love” is only half the phrase, and we shouldn’t neglect “labor.” When Professor Langbein published his own work with judicial manuscripts in the 1990s, he cited Professor Oldham’s writings as “the only other sustained effort to mine judges’ notes.” This was not, I suspect, because other historians hadn’t thought to consider manuscript sources; but rather, as Professor Langbein observed, because the return on investment was discouragingly low, thanks in part to judges’ “often painful or illegible handwriting.” (Alas, penmanship and professional status were inversely correlated in the eighteenth century, and judges understood themselves to be important men indeed.) And yet Professor Oldham not only used judges’ notes in his own work but edited three volumes’ worth to spare the rest of us the pain: the two-part Mansfield Manuscripts, as well as a volume for the Selden Society on the Case Notes of Sir Soulden Lawrence. The scale of the effort needed to produce these editions is impressive. (Scale, literally: one reviewer felt compelled to observe that the Mansfield Manuscripts “weigh in at nearly three kilogrammes.”) But their quality is truly remarkable, and anyone who has spent time with them knows how truly excellent they are. His work on Mansfield, in particular, set a new standard for scholarly editions of legal manuscripts.[1]  As Professor Simpson observed when the Mansfield Manuscripts were first published, “It is hard to see how the job … could have been better done.”

Oldham’s efforts have helped solve one of the great obstacles to progress in our field. One hundred thirty-five years ago, in his well-known lecture on “Why the History of English Law Is Not Written,” F.W. Maitland had occasion “to regret an arrangement of the universe which has placed [English legal] records in one hemisphere and those who would make the best use of them in another.” Air travel and digital photography have alleviated the problem but only in part, and scholarly editions remain indispensable for researchers without the time or funding to access the original documents. If the history of English law is ever finally written, we will have Professor Oldham to thank for rearranging the universe so as to bring the sources and their users closer together.[2]

The fruits of his labor have been apparent not only in his books’ extensive citation by other scholars but also in their use by bench and bar. Just a few years after its publication, the Mansfield Manuscripts played a central role in litigation before the U.S. Supreme Court in Markman v. Westview Instruments, Inc., which concerned the role of juries in patent cases. Alas, Professor Oldham’s work didn’t stop the Court from reaching what he considered to be the wrong result—unanimously. But even Mansfield didn’t win them all.

I don’t want to give the impression, by heaping praise on Professor Oldham’s labor in the archives, that he was merely a Stakhanovite or stenographer of the past. For his scholarship exhibited two other rare but important virtues that the rest of us in the field would do well to imitate. The first is his talent for understanding and explaining legal detail—the mechanics of nisi prius procedure; the formation of struck juries; the intricacies of law reporting. These are hard things to uncover. They often involved practices that were never formalized, that were described in sources whose authors were interested in other things, or that struck contemporaries as too obvious to merit explanation.[3] (Those were the days when a poet like William Cowper could publish a satire on unreported cases and expect readers to get the joke.[4]) Professor Oldham’s lucid writing makes his reconstructions of legal detail seem easy, but they demanded creativity and careful judgment as well as perseverance.

I’ll mention one more of Professor Oldham’s scholarly virtues: his empathy as a historian. He wrote about important figures, but not always likeable ones. In 1780 the London mob so despised Mansfield that it burned his house (including his papers);[5] Thomas Jefferson was still condemning Mansfield’s jurisprudence in the final months of his life. Then there’s Mansfield’s successor as chief justice, Lord Kenyon, whose biographer censured him for his arrogance, roughness, and “sordid parsimony.” More recently, Professor Oldham coauthored an important article about John Scott, 1st Earl of Eldon, who was notorious for his sluggish case management (Jeremy Bentham christened him “Lord Endless”) and, according to William Gladstone, “the great champion of all that was most stupid in politics.” Gladstone was being unfair—Eldon was sufficiently progressive to help abolish trial by battle (in 1819!)—but it would be a stretch to call him beloved. Another of Oldham’s subjects, Sir William Jones, has generally fared better, but even he can hardly hope for undiluted praise in our postcolonial age. And yet one cannot read Professor Oldham’s treatment of these judges without acquiring a new respect for them—a better sense of what they were trying to achieve and why they saw it as worthy, even if we might not. This is not because Professor Oldham ignored his subjects’ vices or withheld judgment about their careers; he didn’t.[6] But his priority was always to understand the sources and the historical truths they revealed, rather to impose his own views.

It’s probably good for Professor Oldham that his work tends to encourage affection for Mansfield, because their two names will forever be linked. And perhaps the connection isn’t accidental. For there seems to be to be a basic similarity between Mansfield’s jurisprudence and Professor Oldham’s approach to writing history. Mansfield generally preferred that judges, not legislators, take the lead in law reform. The reason, as he famously explained when arguing Omychund v. Barker, was that “a statute very seldom can take in all cases.” Although an act of Parliament purports to resolve a problem definitively, it quickly becomes obsolete. The common law, in contrast, operates case by case, continually “work[ing] itself pure” as new circumstances arise.

This strikes me as an apt summary of Professor Oldham’s scholarly achievement. Many scholars seek to be legislators, offering grand theses with the finality of an act of Parliament. But Professor Oldham built from the ground up, patiently accumulating cases and sources whose cumulative effect will far outlast the present generation of historiography. New questions will emerge in time; but anyone hoping to answer them will necessarily build on his foundation.

[1]  When Charles Hobson, who edited the papers of John Marshall, proposed a scholarly edition of St. George Tucker’s legal manuscripts, he invoked Oldham as his exemplar: “What The Mansfield Manuscripts did for Lord Mansfield and the history of English law in the eighteenth century, a publication of Tucker’s law papers might do, perhaps on a less monumental scale, for the Virginia judge and the history of American law in the early republic.”

[2] The occasion of Maitland’s lecture was his inauguration in 1888 as the Downing Professor  of the Laws of England. When Sir John Baker gave his own inaugural lecture as Downing Professor in 2000—“Why the History of English Law Has Not Been Finished”—he cited Professor Oldham’s work as having demonstrated the potential utility of judicial manuscripts.

[3] See, e.g., James Oldham, “Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries,” Law and History Review 29 (2011): 181–220.

[4] William Cowper, “Report of an Adjudged Case Not to Be Found in Any of the Books” (1782), in John D. Baird and Charles Ryskamp, eds., The Poems of William Cowper, Vol. 1: 1748–1782 (Oxford: Clarendon Press, 1980). To be fair, Cowper was not entirely representative. He had trained as a lawyer, and his cousin, Henry Cowper, published important reports of Mansfield’s decisions. 

[5] Cowper wrote two different poems to mourn the loss of Mansfield’s library and manuscripts.

[6] For example, Professor Oldham wrote that Mansfield acted “honestly” and “courageously” in Somerset’s Case, but that he sometimes “went too far” in his judicial activism.